BOOK OF THE CONSTITUTION.

INTRODUCTION.

THE British Constitution is worthy of being an object of inquiry to every man who lives under it, and even to foreigners who have no immediate connexion with it remarkably distinguished as it undoubtedly is from all the free governments of powerful nations which history has recorded, by its exhibiting after the lapse of centuries no symptoms of irretrievable decay, but on the contrary the most expansive energy. In the ensuing work we will trace the gradual formation of this system of government, and exhibit the whole machinery of the constitution.

There are but three kinds of governments. When the sovereign power is vested in one person, it is called a monarchy: if in all the nobles, it is called an aristocracy, or an oligarchy if confined to a few of these: if an assembly of the people have the chief authority, it is called a democracy or a republic. Of all the different species of governments the monarchical is the most ancient and natural, originating at first in parental authority, hence kings are called the fathers of their people. The Assyrian and Egyptian monarchies are the most ancient that we read of, but there are several kings mentioned in the scriptures in the early history of the patriarch Abraham. The Jews were governed by God himself till Saul's time, from whence it has been called a Theocracy; after his elevation to the throne of Israel by God's appointment, the government continued monarchical till the destruction of the temple. Some monarchies are despotic, where the subjects are slaves at the arbitrary power and will of their sovereign; such as the Turks, and other Asiatic nations: others political or paternal, where the subjects, like children under a father, are governed by equal and just laws, consented to and sworn by all Christian princes at their coronations. Some monarchies are hereditary, where the crown descends either to male heirs only, as in France, or to the next of blood, as in Great Britain, Spain, Portugal, &c.; others elective, where upon the death of the reigning prince, without respect to their heirs or next of blood, another by solemn election is appointed to succeed them. This used to be the system in Poland before its partition, and formerly also in Denmark, Hungary, and Bohemia, and is still practised in the United States of America; for although their chief governor is called a president, still he is their sovereign, and is elective.

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Some hereditary paternal monarchies are dependent and held of earthly potentates, consequently are obliged to do homage for their crowns. The little island of Man was called a kingdom, and held in capite of the crown of Great Britain; the kingdom of Naples holds of the pope, and pays him an annual tribute. Others are independent, acknowledging no earthly superior, but hold from God only, hence the words Dei gratia, by the grace of God, on their coins.

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The kingdom of Great Britain is an hereditary paternal monarchy, governed by one supreme independent Head agreeable to the known laws and customs of the kingdom. It is a free monarchy, challenging above all other European kingdoms a perfect freedom from any subjection to the laws of the empire of Germany: for the Roman Emperors obtained anciently the dominion of this land by force of arms, but afterwards abandoning the same, by the law of nations the right returned to their former ownThe British crown is entirely free from the least shadow of subjection to the bishop of Rome, and is thereby relieved from many burdens and imposts under which other kingdoms groan; such as Appeals to Rome in ecclesiastical suits, Provisions, Dispensations, Confirmations, Bulls, &c. besides several tributes and taxes paid to the Pope. There is no interregnum, which saves us from the evils attending elective monarchies. By the necessary concurrence of the Lords and Commons in making and repealing all Statutes or Acts of Parliament, our monarchy has the double advantage of an aristocracy and also of a democracy, without the disadvantages of either: contributing by this happy blending of the three powers to the industry, liberty and happiness of the people. Both England and Scotland have been governed by kings as far back as history or tradition can carry us, without any attempt at a change so that we seem to be naturally inclined to this sort of government.

THE FEUDAL SYSTEM.

THE Feudal System was so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelman does not scruple to call it the law of nations, in the western parts of the Old World. The essential principle of a fief was a mutual contract of support and fidelity. Whatever obligations of service to his lord it laid upon the vassal, corresponding duties of protection, were imposed by it on the lord towards his vassal. If these were trangressed on either side, the one forfeited his land, the other his seigniory or rights over it. Nor were motives of interest left alone to operate in securing the feudal connexion. The associations founded

upon ancient custom and friendly attachment, the impulses of gratitude and honour, the dread of infamy, the sanctions of religion, were all employed to strengthen these ties, and to render them equally powerful with the relations of nature, and far more so than those of political society. It is a question agitated among the feudal lawyers whether a vassal is bound to follow his lord's standard against his own kindred, but a much more important one, whether he must do so against the king. In the works of those who wrote when the feudal system was declining, this is commonly decided in the negative, and to be equally rebellion in the vassal as in the lord.

But the feudal polity, which was by degrees established over all the continent of Europe, was not received in England till after the conquest, when William the Norman introduced it. But the Conqueror does not appear to have effected the introduction of feudal tenures immediately, and when he did accomplish it, it was not by an act of his own arbitrary will, but was gradually established by the Norman barons, and others in such forfeited lands as they had received from the gift of the Conqueror, and afterwards universally consented to by the great council of the nation, long after his title was secured, and himself firmly seated on that throne which is still filled by his descendents.

And although the era of this great revolution in landed property cannot be exactly ascertained, yet there are some circumstances that may lead to a probable conjecture towards it. For we learn from the Saxon chronicle, that in the nineteenth year of King William's reign, an invasion was apprehended from Denmark; and the Saxon military constitution being then laid aside, and none other being introduced in its place, the kingdom was wholly defenceless, which obliged William to bring over a large army of Normans, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and more readily incline the barons to listen to his proposals for putting them in a posture of defence. For as soon as the danger was over, the king held a great council to inquire into the state of the nation; the immediate consequence of which was the compilation of the great survey called Doomsday-Book, which was finished in the following year; and in the latter end of that very year, the king was attended by all his nobility at Sarum, which does not appear to have been at that time a rotten borough, but of sufficient importance for a parliament to meet at it; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vassals, and did homage and fealty to his person. This new polity, therefore, seems not to have been altogether imposed by the Conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manner as the other nations of

Europe had before adopted it, and upon the same principle of self-security.

In consequence of this change, it became a fundamental maxim and necessary principle of English tenures, "that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feudal services." For, this being really the case in pure, original, proper feuds, other nations which adopted this system, were obliged to act upon the same supposition as a subtraction and foundation of their new polity. And indeed, by their consenting to the introduction of feudal tenures, our ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military system, and to oblige themselves (in respect of their lands) to maintain the king's title and territories with equal vigour and fealty, as if they had received the lands from his bounty, upon these express conditions, as pure, proper, beneficiary feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feudal constitutions, and well understanding the import and extent of the feudal terms, gave a very different construction to the proceeding, and therefore took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services as were never known to other nations, as if the English had, in fact as well as theory, owed every thing they had to the bounty of their sovereign lord.

The grand and fundamental maxim of all feudal tenures, is this, that all lands were originally granted out by the sovereign, and are, therefore, holden either mediately or immediately of the crown. The granter was called the proprietor, or lord; being he who retained the dominion or ultimate property of the feud or feu: and the grantee, who had only the use and pos session, according to the terms of the grant, was styled the feudatory or vassal, which was only another name for the tenant or holder of the land; though on account of the prejudices we have conceived against the doctrines that were afterwards grafted on this system, we now use the word vassal opprobriously, as synonymous with slave or bondman. The manner of the grant was words of pure donation, dedi et concessi, which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious. delivery of possession in the presence of the other vassals, which perpetuated among them the era of the new acquisition, at a time when the art of writing was very little known: and therefore, the evidence of property was reposed in the memory of the neighbourhood, who in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant, upon investiture, usually did homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord who sat before him; and there professing that "he did become his man from that day forth, of life and limb and earthly honour:" and then he received a kiss from his lord.

The ceremonies used in conferring a fief were principally three: homage, fealty, and investiture. 1. The first was designed as a significant expression of the submission and devotedness of the vassal towards his lord. In performing homage his head was uncovered, his belt ungirt, his sword and spurs removed; he placed his hands, kneeling, between those of the lord and promised to become his man from thenceforth; to serve him with life and limb and worldly honour, faithfully and loyally, in consideration of the lands which he held under him. None but the lord in person could accept homage, which was commonly concluded with a kiss. 2. An oath of fealty was indispensable in every fief; but the ceremony was less peculiar than that of homage, and it might be received by proxy. It was taken by the clergy, but not by minors; and in language, differed little from the form of homage. 3. Investiture, or the actual conveyance of feudal lands, was of two kinds, proper and improper. The first was an actual putting in possession on the ground, either by the lord or his deputy; which is called in law, livery of seisin. The second was symbolical, and consisted in the delivery of a turf, a stone, a wand, a branch, or whatever else might have been made usual by the caprice of local customs. Immediately upon investiture the vassal's duties commenced. These it is impossible to define or enumerate; because the services of military tenure, were in their nature uncertain, and distinguished as such, from those incident to feuds of an inferior description. It was a breach of faith to divulge the lord's counsel, to conceal the machinations of others from him, to injure his person and fortune, or to violate the sanctity of his roof and the honour of his family. In battle he was bound to lend his horse to his lord, when dismounted; to adhere to his side while fighting; and go into captivity as a hostage for him, when taken.

The lord was, in early times, the legislator and judge over all his feudatories; and therefore the vassals of the inferior lords were bound by their fealty to attend their domestic courts baron, (which were instituted in every manor or barony for doing speedy and effectual justice to all the tenants,) in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow tenants, and upon this account, in all the feudal institutions, both here and on the continent, they are distinguished by the appellation of the peers of the court: pares curtis or pares curiæ.